BELLEFONTE, Pa. — Jerry Sandusky lost another bid to delay his child sexual abuse trial on Wednesday and, in what could be the last pretrial hearing before jury selection begins next week, the presiding judge heard defense lawyers and prosecutors debate whether charges should be thrown out.
The 45-minute hearing in a central Pennsylvania courthouse focused on the evidence regarding so-called "Victim 8," a young man who was reportedly seen by a janitor being molested by the former Penn State assistant football coach in team showers more than a decade ago.
Prosecutors have said the janitor, Jim Calhoun, has dementia and is not available to testify, so they want to call to the stand co-workers who would recount what Calhoun told them.
Sandusky lawyer Joe Amendola has argued there is not sufficient evidence to take the Victim 8 charges to trial, and at the Wednesday hearing he asked for a hearing at which prosecutors would either show he is wrong or have Cleland dismiss those counts. The same applies to charges involving two alleged victims.
Amendola also has asked for the remaining charges to be dismissed on other grounds.
"We're faced with a myriad of charges," Amendola told Cleland. "And the more charges that are presented to a jury, the more likely it is they're going to feel that something must have happened."
Frank Fina, a prosecutor with the state attorney general's office, said it was difficult to make an argument that the evidence is sufficient when there isn't any evidence in the record, because Sandusky waived his preliminary hearing.
"There's not a single fact of record in this case," Fina told the judge. "And that is, I think it's fair to say, solely as a result of the decisions of the defense."
Sandusky, 68, faces 52 counts for alleged abuse of 10 boys over a 15-year period, charges he has repeatedly denied. He was not in court Wednesday but did attend a closed-door session Tuesday with the judge, prosecutors and lawyers.
Cleland's order said the delay request was the topic of the Tuesday proceeding.
Cleland wrote that Amendola told him that if the trial starts next week, experts would not be available or able to help, an investigator was facing surgery, large amounts of material had yet to be analyzed and two Penn State administrators who face their own trial would not be available as witnesses. Another issue involved the grand jury that investigated Sandusky, and although Cleland did not elaborate on it, citing grand jury secrecy, he denied it as well.
"The reality of our system of justice is that no date for trial is ever perfect, but some dates are better than others," Cleland wrote.
Cleland said starting jury selection on Tuesday would, on balance, protect Sandusky's right to a fair trial, the alleged victims' rights to their day in court, the state's obligation to prosecute promptly and the public's expectation of a swift proceeding. Opening statements in the case will not occur before June 11, he said.
Cleland did not rule on recent requests by attorneys for five alleged victims to keep their identities secret.
The charges against Sandusky concern his relationships with boys he met through his charity for at-risk kids, The Second Mile. Prosecutors allege Sandusky groomed the boys for sexual abuse, offering gifts and access to the team in addition to companionship.
At least some of the alleged abuse happened in the Penn State football team's facilities, prosecutors said. One of the alleged attacks was witnessed by former receivers coach Mike McQueary, then a graduate assistant.
Details of the grand jury report touched of a massive scandal that engulfed the university, ultimately leading to the firing of Hall of Fame football coach Joe Paterno and the ouster of university President Graham Spanier. Two other university officials are charged with failing to report suspected abuse and perjury related to their grand jury testimony.
Those two officials, athletic director Tim Curley and vice president Gary Schultz, are the potential witnesses referred to in Cleland's latest order. Curley, on leave, and Schultz, now retired, have told Sandusky's lawyer they will invoke their Fifth Amendment right against self-incrimination if subpoenaed.Also Wednesday, Cleland issued a detailed "decorum order" that will govern reporters and others who plan to attend the trial.